Salazar v. State

APPEAL
FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable David C.
Dally, Circuit Judge

OPINION

WILLIAM W. FRANCIS, JR., J.

Eddie
A. Salazar ("Salazar") appeals from the judgment of
the motion court denying his amended Rule 29.15[1] motion to set aside his conviction for the
class A felony of murder in the second degree. See
§ 565.021. Salazar challenges the judgment of the motion
court in four points on appeal. Finding no merit to any of
Salazar's points, we affirm the judgment of the motion
court.

We set
forth only those facts necessary to complete our review. In
doing so, we view the evidence in the light most favorable to
the motion court's judgment. McCauley v. State,
380 S.W.3d 657, 659 (Mo.App. S.D. 2012).

On the
evening of February 4, 2010, Salazar's son, while in
Salazar's care, died from blunt force trauma to the head.
Salazar then threw his son's body into a nearby river. He
staged cuts and scrapes on himself to make it appear as
though he had been in a fight. Salazar then called
authorities and claimed that two men had entered his home and
kidnapped his son. After Salazar gave several contradictory
versions of what happened, his son's body was found in
the river, and Salazar was charged by amended information as
a prior offender for the class A felony of second-degree
murder.

During a pre-trial motion hearing, the following colloquy
occurred:

BY [TRIAL COUNSEL]: Judge, I am concerned about the way I
understand we're going to conduct the voir dire with, I
guess, 56 jurors, potential jurors brought into the
courtroom. If we do that, that is going to take up every bit
of the seating in the courtroom. I understand there is only
limited seating in the courtroom, but on the other hand Mr.
Salazar does have a right under the Sixth and the Fourteenth
Amendments to the U.S. Constitution, Article I, Section 18A
of the Missouri Constitution to a public trial. I'm sure
there will probably be family members of Mr. Salazar, and
perhaps other people that would like to attend the trial.

And I would ask for some accommodations, so it is possible to
have a public presence during the entire trial including voir
dire. Otherwise, I think he would be denied his right to a
public trial.

BY THE COURT: They can attend the trial, but there is not
going to be room in here during the voir dire and there is
never room in here for the voir dire. And so I don't know
of any accommodations that we can make. So that request is
going to be denied.

On the morning of trial, the following occurred:

BY [TRIAL COUNSEL]: I think, finally, Judge, I've got
this motion on the record from last week, but I do object to
the exclusion of the public during voir dire on the basis of
the 6th and 14th amendments to the United States Constitution
Article I, Section 8 today and according to the Missouri
State Constitution and the First Amendment to the United
States Constitution.

BY THE COURT: All right. And so the record is clear we have
summons - how many people, Carl? 60 - 63 people. We have
normally room for 43 individuals in our courtroom. To make
room for the extra people the Court has taken out chairs that
are in front of the bar and put in a bench which still
accommodates 53 people. 56 people.

And so that takes up every seat that we have in this
courtroom. Counsel's table is full. In fact, I don't
know where - if the prosecutors were planning on putting
their . . . stuff. We have to cram them in as it is. So there
is no room for anybody else in this courtroom and because of
that during voir dire anybody else will be excluded from the
courtroom.

BY [TRIAL COUNSEL]: Motion is overruled and continuing,
Judge?

BY THE COURT: Yes.

At
trial, the State moved for admission in evidence of
State's Exhibit 3, designated as a "DVD [Salazar]
interview HP, " which referenced Salazar's prior
prison time and drug use; State's Exhibit 6, designated
as a "DVD [Salazar] interview CPD, " also
referencing Salazar's prior prison time and drug use; and
State's Exhibit 13, designated as a "Photo [Salazar]
rt side stomach, " showing scratches on Salazar's
body, but which also showed a tattoo Salazar claimed to be a
"gang tattoo."[3] Trial counsel made general objections to
the introduction of these exhibits, but the objections were
overruled and the exhibits were admitted. Trial counsel did
not make specific and timely objections to the references to
drug use and prison time in State's Exhibit 6.

The
jury found Salazar guilty of second-degree murder, and
Salazar was sentenced to life in prison. After his conviction
was affirmed by this Court on direct appeal, mandate issued
December 26, 2013.

A
hearing was held on June 3, 2015. Salazar's trial counsel
testified at the hearing, and Salazar's appellate counsel
testified via deposition. On September 9, 2015, the motion
court entered its "Findings of Fact, Conclusions of Law
and Judgment" denying Salazar's Rule 29.15 motion.
This appeal followed.

In four points on appeal, Salazar asserts:

1. The motion court clearly erred in finding that trial
counsel was not ineffective for failing to make an offer of
proof that there were people who attempted to attend voir
dire, but were excluded, thereby depriving Salazar of a fair
trial.

2. The motion court clearly erred in finding that appellate
counsel was not ineffective for failing to raise on
Salazar's direct appeal the issue that the trial court
erred in admitting State's Exhibit 13, which contained
evidence of what Salazar claims is a gang tattoo on his
person.

3. The motion court clearly erred in finding that trial
counsel was not ineffective for failing to object to the
introduction of State's Exhibit 6, which contained a
videotaped interview of Salazar in which he referenced his
prior drug use and prison time.

4. The motion court clearly erred in finding that appellate
counsel was not ineffective for failing to raise on
Salazar's direct appeal the trial court's error in
allowing the introduction of State's Exhibit 3, which
contained a videotaped interview of Salazar in which he
referenced having used drugs and serving prison time.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Standard
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